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Decision of the European Ombudsman closing his own-initiative inquiry OI/11/2011/PB concerning the European Environment Agency

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The background to the inquiry

1. With the aim of identifying and spreading best practices used by EU agencies in their relations with citizens, the Ombudsman launched in May 2011 a programme of visits to such agencies. The visit in the present own-initiative inquiry took place on 20 October 2011. In his meeting with the Director of the European Environment Agency, the Ombudsman clarified that such visits are formally carried out on the basis of his competence to conduct own-initiative inquiries. An own-initiative inquiry implies, among others, that the usual procedural guarantees concerning such inquiries apply. These include the agency's right, as envisaged in Articles 5.1, 5.2 and 14.2 of the Ombudsman's Implementing Provisions[1], to request the European Ombudsman to treat information and documents on a confidential basis.

2. The EEA was established by Council Regulation (EEC) No 1210/90 of 7 May 1990[2], which has been amended several times since then.  Its establishment followed the Single European Act of 1987, which introduced an explicit recognition of the environment in the Community's founding treaty. Its headquarters are in Copenhagen, where it began its operations in 1994.

3. According to the legal framework mentioned above, the EEA's main objective is to provide sound, independent information on the environment to those involved in developing, adopting, implementing and evaluating environmental policy, and also to the general public. The Agency has been charged with helping the European Union and member countries make informed decisions about improving the environment, integrating environmental considerations into economic policies and moving towards sustainability. 

4. To date, the European Ombudsman has conducted very few inquiries concerning the European Environment Agency. Only four complaints against the Agency have led the Ombudsman to open a full inquiry, the last one dating back to 2000. There are currently no inquiries involving the Agency. Given the EEA's importance and the obvious public interest in the issues it deals with, this very low number of complaints cannot be interpreted as the result of a lack of public awareness of the Agency's existence or of its activities. On the contrary, it should be taken as a sign that the Agency successfully manages to integrate good administration into its procedures and working methods. The Ombudsman was, therefore, particularly interested in familiarising himself with the EEA's best practices and in deriving insights that could potentially be used in the future, with an eye to sharing best practice among the various EU agencies.

The subject matter of the inquiry

5. The meeting with the Director of the EEA and the relevant members of her staff centred around the following topics:

  • The EEA's initial contacts with the public
  • Transparency, dialogue and accountability
  • Recruitment
  • Tenders and contracts
  • Conflicts of interest

The Ombudsman's findings and suggestions following his visit to the EEA

6. The Ombudsman made a number of findings that are available in his Report following his visit to the European Environment Agency - OI/11/2011/PB[3].  

7. In his Report, the Ombudsman summarised his suggestions as follows:

a. Concerning transparency and access to documents, the Ombudsman invited the Agency to include in its Annual Management Plan for 2013 the task of examining and implementing (a) the obligation to produce an annual report on its application of Regulation 1049/2001 regarding public access to documents and (b) to set up the public register of documents foreseen in that Regulation.

b. Concerning recruitment, the Ombudsman invited the Agency to submit, in its reply to the report, written samples of complaint guidance, mentioning the right to complain to the European Ombudsman, which it could include in the relevant documents made available to candidates applying for employment with the Agency. Such guidance should also be given to candidates who apply for posts internally. 

c. Concerning public procurement, the Ombudsman invited the Agency to submit, in its reply to the report, written samples of complaint guidance, mentioning the right to complain to the European Ombudsman, which it could include in the relevant tender and contract documents.

d. Concerning independence and objectivity of its collaborators, the Ombudsman invited the Agency to make modifications to its existing procedures and rules relating to conflicts of interest. More specifically, such modifications could introduce rules which foresee (a) that, along with the relevant declaration, the Agency's staff, including its management, as well as all experts should provide the Agency with their full CVs, in order to allow it to determine whether an actual or potential situation of a conflict of interest exists; and, (b) that the Agency formally adds to the file of the person in question its own written assessment of the question of conflict of interest, signed by the relevant manager in charge. Finally, whenever the publication of CVs and declarations of interest is possible and appropriate - as is the case for the members of the Agency's Scientific Committee - the Agency could add its above-mentioned assessment to the list of documents that the public may consult online.

The follow-up given by the EEA to the Ombudsman's suggestions

8. On 26 September 2012, the Director of the EEA submitted a short reply with a number of illustrative annexes and web-links. These are available in full through the links in this footnote[4].

9. It is useful to quote the Director's letter in full:

"With reference to your letter of 6 June 2012 (S2012-1567 42) enclosing your report on your visit to the European Environment Agency which took place on 20.10.2011 , I would like to inform you herewith of the measures taken on the basis of your suggestions.

1. The information available on the EEA external website concerning Regulation

(EC) No 1049/2001 and its implementation, and access to EEA documents has

been updated and supplemented with (a) general information on the matter and

(b) a guide on public access to documents with a reference to the functional

mailbox where applicant may submit their request for access to documents (see:

http://www.eea.europa.eu/about-us/documents). Furthermore, the EEA external

website contains a list of documents about the EEA directly accessible by

electronic means, as well as a report on the implementation of Regulation (EC)

No 1049/2001 for the period September 2009 to September 2012 (see:

http://www.eea.europa.eu/about-us/documents/docs-about-eea).

2. The vacancy notice template and the letter notifying the applicants of the

outcome of the selection process have been updated in line with point b of the

ombudsman's suggestions (see attached annexes 1a and 1 b).

3. The contract notice published in the supplement to the Official Journal of the

European Union for open or restricted call for tenders informs tenderers

systematically on their right to have recourse to the European Ombudsman (see

for example contract notice 2012/S 126-207890, OJ/S 126 of 4.7.2012). The letter template informing tenderers of the decision reached concerning the award of the contract has been updated in line with point c of the ombudsman's suggestions (see attached annex 2).

4. Additional measures to strengthen the existing procedures and policies in relation to the prevention of conflict of interests have been submitted to and approved by the EEA Management Board at its 63rd meeting on 27.6.2012 (see attached annex 3).

I trust that you will find the measures undertaken acceptable to comply with Regulation (EC) No 1049/2001 and look forward to working with you to improve further the quality of our administration and of our services towards citizens."

The Ombudsman's analysis and conclusions

10. The Ombudsman examined the points in the EEA's reply one by one.

Suggestions related to specific obligations in Regulation 1049/2001 on public access to documents

11. With regard to the obligation to publish an annual report on the application of Regulation 1049/2001, Ombudsman welcomes the EEA's online publication of such a report covering the period from 2009 to 2011. It is praiseworthy that the Agency decided, following the Ombudsman's general suggestion, to publish a report that includes the year 2009. The Ombudsman looks forward to reading such future annual reports by the EEA.

12. With regard to the obligation to keep a public register of documents, the Ombudsman regrets that the EEA decided, as appears to be the case, not to initiate a process for the introduction of such a register. The EEA appears to consider that its website essentially fulfils the purpose that would be fulfilled by the public register provided for by Regulation 1049/2001. The Ombudsman cannot agree for the following reasons.

13. From the point of view of purpose, the obligation to make available an online public register must not be confused with a communication policy. A public register is intended to enable the public to gain detailed and up-to-date knowledge of the documents, or at least all types of documents, that the institution in question holds. This knowledge enables members of the public, among other things, to exercise their fundamental right to ask for access to documents, or to access the documents directly in cases where they can be immediately published on the register.  A public register is not, in itself, premised on an assessment as to what members of the public might be interested in reading. That, by contrast, is of course the key purpose of a communication policy.

14. From the point of view of a strict legal interpretation, the use of the term 'register' in Regulation 1049/2001 is not coincidental. The EU legislator did not state that the institutions should keep a 'collection' or 'set' or 'list' of documents. The EU legislator opted for the term 'register', which, at least in several Member States, was known to mean something other than a collection of documents. The Ombudsman recognises that certain sections of a website may, at least in part, effectively take the form of a 'register' - for instance when one takes into account the structured content combined with an advanced search engine - but a website as such will very rarely, if ever, constitute a document 'register'.

15. The Ombudsman is fully aware that the setting up of a public register is unlikely to be a straightforward task which can be implemented swiftly. It therefore seemed appropriate to make the suggestion of initially including such a project in the Agency's annual management plan. The Ombudsman notes that he made a similar suggestion to the European Monitoring Centre for Drugs and Drug Addiction, and that this Agency decided to include in its draft Work Programme for 2013 the establishment of a public register of documents[5].

16. In light of his above findings, the Ombudsman has decided to include a further remark at the end of the present decision, inviting the European Environment Agency to respond to this issue again.

Suggestions concerning complaint guidance

17. The Ombudsman notes and welcomes the fact that the EEA has decided to implement his suggestions regarding complaint guidance in the fields of recruitment, tender and contract procedures (suggestions a. and b.). He therefore ends his examination of this issue.

Suggestions concerning conflict of interest

18. The Ombudsman's suggestions on this issue covered the specific issues of procedure and publication, and a fundamental issue regarding the institutional approach to potential 'conflicts of interest'.

19. The specific issues included the suggestions that certain CVs should be complete and should be published online. The EEA has basically accepted these suggestions, which the Ombudsman very much welcomes. Only one slightly unclear message or 'rule' remains in the documents the EEA sent to the Ombudsman, that is to say, the words "and where agreed" in the following :

"Publication of CVs

The full CVs of Senior Managers, Scientific Committee members and where agreed, members of the Management Board, will be published on the EEA external website including affiliations, education and employment history."

20. The Ombudsman would be interested in knowing why the full CVs of the members of the Management Board will only be published "where agreed", and also in knowing the procedures for such agreement. The Ombudsman may inquire further into this issue in the future and would ask the Agency to refer to this issue in its answer to the further remarks he will make in his decision closing this inquiry.

21. The more fundamental issue concerned the introduction of an approach that requires the relevant managers to take a more active and responsible role in the assessment as to whether situations of conflict of interest exist. The EEA has informed the Ombudsman of a concrete procedural and decisional measure that should help give effect to this approach in relation to staff members and consultants and contractors. The EEA has introduced a rule related to its annual individual assessment of staff members, where "[w]hen finalising the development plan, the line manager responsible will specify his/her own assessment of the question of conflict of interests." In the Ombudsman's view, this is a concrete measure that should help increase management's attention to this issue. With regard to consultants and contractors, the Ombudsman notes that the form in which these persons declare to act with no conflict of interest "is countersigned by the responsible Head of Group". The Ombudsman welcomes this rule too.

22. The Ombudsman would be interested in knowing whether similar rules, intended to strengthen the Agency's own decision-making regarding possible conflicts of interest, will also apply in respect to independent experts appointed as evaluators, scientific committee members, special advisers and guest scientists. The documents sent in response to the Ombudsman's suggestions do not clearly indicate that this is the case. The Ombudsman may inquire further into this issue in the future and would ask the Agency to refer to this issue in its answer to the further remarks he will make in his decision closing this inquiry.

23. The Ombudsman notes that issues of conflict of interest at EU agencies are currently being addressed through central and coordinated processes, which have been given added impetus by a recent special report of the Court of Auditors.

24. In its report, the Court of Auditors presented its findings following an investigation into the issue of conflict of interest in four EU agencies (Special Report 15/2012[6]). It found that, up to the end of its field work, none of the audited Agencies adequately managed conflict of interest situations. ECA stated that “[a]fter examining the situation at these agencies, we have drawn up a list of general and specific recommendations which, if properly implemented, might bring significant improvements in the management of conflict of interest situations not only in the selected Agencies but in all EU Institutions and decentralised bodies[7]. ECA also appeared to suggest, at the Court's press conference, that the Court would consider carrying out a follow-up inquiry into this issue in a couple of years' time.

25. The importance of this issue for other agencies and indeed other parts of the EU administration has been generally accepted and has given rise to discussions with an apparently concrete intended outcome. Thus, in its reply, as summarised in the Court of Auditor's Special Report, the European Commission noted that "[t]he Inter-Institutional Working Group on EU decentralised agencies, steered by the Commission, is about to formally agree on a Common Approach...", and that the Commission "will present a roadmap on the implementation of the Common Approach by the end of 2012, where it will, amongst other things, indicate how it intends to work with agencies to follow-up on these provisions."[8]

26. In light of these current developments, the Ombudsman considers it appropriate to issue a further remark, asking the EEA to inform him of the measures that it intends to adopt, or has already adopted, in light of the ECA report referred to above and subsequent related developments.

Conclusions

On the basis of his examination of the European Environment Agency's reply and the contextual factors referred to above in the body of the decision, the Ombudsman closes this inquiry.

The European Environment Agency will be informed of this decision.

Further remarks

The setting-up of a public register

The Ombudsman takes the view that the lack of an online EEA public document register remains inconsistent with the relevant legal obligation. The Ombudsman is also aware that the setting-up of such a register can be truly challenging. This is particularly important in the context of EU agencies, most of which are small organisations that will have only limited resources to dedicate to such a project. However, in the course of his agency visits, the Ombudsman has become aware of the excellent collaboration that agencies have established amongst themselves, including in the area of information technology. The Ombudsman therefore considers it appropriate to encourage the EEA to contact other EU agencies with a view to finding the best possible ways to establish public registers.

The Ombudsman points out that his own organisation is currently working on the introduction of a public document register in line with the relevant obligations under Regulation 1049/2001. Since the European Ombudsman's Office is approximately the same size as many EU agencies, the challenges and solutions identified in this process might possibly serve as useful points of reference for the agencies' own efforts to comply with the said obligation. The Ombudsman remains entirely at the agencies' disposal for further discussion and information exchange in this respect.

The additional measures to avoid actual or apparent conflicts of interest

The Ombudsman invites the EEA to inform him of the measures that it intends to adopt, or has already adopted, in light of the ECA report referred to above and subsequent related developments.

The Ombudsman's usual practice is to ask an institution, body, office or agency to respond to further remarks within a period of six months. In the present case, the Ombudsman notes that a new director will take office at the EEA in June 2013. In the light of this development, the Ombudsman considers it appropriate to fix a deadline of 31 October 2013 for the Agency's follow-up to the further remarks.

P. Nikiforos Diamandouros

Done in Strasbourg on 11/03/2013



[2] Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network

 OJ 1990 L 120, p. 1–6.

[5] http://www.ombudsman.europa.eu/showResource?resourceId=1355324661683_OI-12-2011-(JSA)JF-E2012-165664.pdf&type=pdf&download=true&lang=en

[7] http://eca.europa.eu/portal/pls/portal/docs/1/17208743.PDF

[8] On 19 December 2012, the Commission published a press release on the roadmap for reform of agencies, Reference: IP/12/1396, http://europa.eu/rapid/press-release_IP-12-1396_en.htm